Reiter v. Reiter

186 A.D.2d 641, 588 N.Y.S.2d 641, 1992 N.Y. App. Div. LEXIS 11315

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1992
• Status: Published

Opinion

—In an action to recover damages for fraud in the distribution of marital assets, the defendant former husband appeals from so much of an order of the Supreme Court, Nassau County (Kohn, J.), entered November 2, 1990, as denied his motion for a protective order with respect to the plaintiffs notice for discovery and inspection and cross notice to take an oral deposition.

Ordered that the order is modified, as a matter of discretion, by granting the motion to the extent of limiting the scope of the documents requested to a period through June 19, 1986, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Following entry of a judgment of divorce, the plaintiff former wife discovered that the defendant former husband held two promissory notes in the sum of $185,000, dated June 19, 1986, which were not revealed during the pendency of the matrimonial action. In the instant fraud action, commenced by the plaintiff to recover her share of that sum, the defendant seeks a protective order vacating the plaintiffs notice for discovery and inspection and a cross notice to take a deposition (see, CPLR 3103 [a]).

The plaintiff is entitled to examine the financial and other documents she requested, regardless of whether they were previously disclosed in the matrimonial action. However, the request should be limited to the period prior to the execution of the promissory notes, since any documents concerning the period thereafter would not be material or necessary in this action (see, CPLR 3101 [a]; Lazarus v Lazarus, 114 AD2d 1012; Pentecost v Pentecost, 125 AD2d 558). The order of the Supreme Court is modified accordingly. Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.